*The affidavit and search warrant do not have to be typed, although that is the preferred method of drafting such documents.

The affidavit and search warrant can be drafted by either: (1) the prosecuting official, which may include assistant attorneys general, assistant prosecuting attorneys, or attorneys for the city, village, or township; or (2) the applicable law enforcement agency. Preferably, the affidavit and warrant should be typed* on SCAO Form MC 231, which contains helpful “instructions for preparing affidavit and search warrant” on its reverse side.

B. Signature of Prosecuting Official
The signature of a prosecuting official is not legally necessary to issue a search warrant based upon an affidavit. MCL 600.8511(f) and People v Brooks, 75 Mich App 448, 450 (1977). This is unlike the issuance of an arrest warrant, which requires the signature of a prosecuting official. See MCL 764.1(2) (“A magistrate shall not issue a warrant for a minor offense unless an authorization in writing . . . is filed with the magistrate and signed by the prosecuting attorney . . . .”) and MCL 600.8511(d) (a magistrate has the authority “[t]o issue warrants for the arrest of a person upon the written authorization of the prosecuting or municipal attorney . . . .”)* Although a prosecuting official’s signature is not legally necessary to issue a search warrant, the “Affidavit for Search Warrant” in SCAO Form MC 231 contains a rectangular box in the lower left corner for the signature of a reviewing prosecuting official.

C. Neutral and Detached Magistrate
A magistrate who issues a search warrant must be “neutral and detached,” a requirement rooted in both the United States and Michigan Constitutions. Shadwick v City of Tampa, 407 US 345, 350 (1972); People v Payne, 424 Mich 475, 482-483 (1986); Const 1963, art 3, § 2. In Payne, supra, the Michigan Supreme Court held that a magistrate who was also a court officer and a sworn member of the sheriff’s department could not issue search warrants: “The probable cause determination must be made by a person whose loyalty is to the judiciary alone, unfettered by professional commitment, and therefore loyalty, to the law enforcement arm of the executive branch.” Similarly, in People v Lowenstein, 118
Page 2 Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Mich App 475, 486 (1982), the Court of Appeals held that a magistrate who previously had prosecuted and had been sued by the defendant was not neutral and detached. However, in People v Tejeda (On Remand), 192 Mich App 635, 638 (1992), the Court of Appeals held that the “neutral and detached magistrate” requirement is not violated by a procedure where police officers wait in the magistrate’s chambers for a phone call to provide them with additional information to complete the affidavit. The Court found that such a procedure, even though it places the police officers in the presence of the magistrate during the search warrant process, does not necessarily mean the magistrate has injected himself into the investigatory process. In Lowenstein, supra at 483-484, the Court of Appeals provided the following circumstances in which a magistrate must disqualify himself or herself from authorizing warrants: “‘[A magistrate] associated in any way with the prosecution of alleged offenders, because of his allegiance to law enforcement, cannot be allowed to be placed in a position requiring the impartial judgment necessary to shield the citizen from unwarranted intrusions into his privacy.’ . . . In other words, an otherwise duly appointed magistrate who just happens to be connected with law enforcement may not constitutionally issue warrants. . . . Next, the magistrate (or judge) must disqualify himself if he had a pecuniary interest in the outcome. A judge must also disqualify himself when one of the parties happens to be his client. . . . He must also disqualify himself where a party happens to be a relative. . . . Furthermore, he must disqualify himself in a subsequent contempt trial where he was the victim of the contempt. In fact, he must disqualify himself even if he was not the victim if he happened to have become embroiled in a running controversy in the trial. In fact, Michigan requires a new judge any time that the trial judge defers consideration of a charge of contempt for misconduct during a trial until after a trial’s conclusion.” [Citations omitted.] An individual who is “employed by and work[s] for a law enforcement agency” is not a “neutral and detached magistrate” qualified to issue warrants under the Fourth Amendment to the United States Constitution. United States v Parker, 373 F3d 770 (CA 6, 2004). In Parker, the Sixth Circuit Court of Appeals agreed with the district court’s conclusion that despite her “administrative assistant-like” job responsibilities, an individual who worked at a county detention facility under the job title of “chief lieutenant deputy jailer” was engaged in law enforcement to an extent that prohibited her from acting as the county’s trial commissioner, a position from which search and arrest warrants issued.

“(f) To issue search warrants, when authorized to do so by a district court judge.” A district court judge may grant “blanket authorization” to magistrates to issue search warrants; the authorization need not be on a case-by-case basis. See People v Paul, 444 Mich 940 (1994), where the Supreme Court, in lieu of granting appeal, reversed the judgments of the Court of Appeals and circuit court and thus granted “blanket authorization” authority to district court judges. There is no requirement under MCL 600.8511 that the authorization to issue search warrants be in writing. People v White, 167 Mich App 461, 464-466 (1988) (“had the Legislature or Supreme Court intended to require written authorization, they would have done so”). MCL 780.651(3) authorizes “[a] judge or a district court magistrate [to] issue a written search warrant in person or by any electronic or electromagnetic means of communication, including by facsimile or over a computer network.” (Emphasis added.) 2. District or Circuit Court Judges There is general authority for circuit court judges to issue search warrants. MCL 780.651(2)(a) and (3) specify that judges may issue search warrants. MCL 780.651 also authorizes “magistrates” to issue search warrants. MCL 761.1(f) defines magistrate as a district court or municipal court judge, and goes on to state the following: “This definition does not limit the power of a justice of the supreme court, a circuit judge, or a judge of a court of record having jurisdiction of criminal cases under this act, or deprive him or her of the power to exercise the authority of a magistrate.” [Emphasis added.] In the event a district court judge knows that he or she may be temporarily unavailable to issue a search warrant, the chief judge of that district can request the chief judge of an adjoining district to direct a district judge within that adjoining district to serve temporarily as a district judge and to review the search warrant. MCL 600.8212 provides:

Page 4

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

“The chief judge of any district upon the request of the chief judge of an adjoining district may direct a district judge within the district to serve temporarily as a district judge in the adjoining district from which the request was made.” See also People v Fiorillo, 195 Mich App 701, 704 (1992) (a district court may issue a warrant for a search outside its jurisdictional boundaries).

“[W] e take this opportunity to note our disapproval of the dicta in Pipok and Paladino suggesting that state warrant requirements apply to joint federal and state execution of federal warrants. Michigan statutory provisions governing issuance and execution of search warrants, on their face, and as a matter of the legislative power of this state, address only search warrants . . . issued by judicial officers of Michigan.” Sobczak-Obetts, supra. In Sobczak-Obetts, a federal magistrate issued a search warrant to federal and state authorities to search the defendant’s home. At the time of searching defendant’s home, the agents did not provide a copy of the affidavit to the search warrant to the defendant, a procedural violation of Michigan statutory law (but not federal law). The circuit court suppressed the admission of firearms seized pursuant to the search warrant based upon this procedural violation. The Court of Appeals affirmed. The Supreme Court reversed and remanded the case to the trial court, holding that it could not conclude that the Legislature intended the exclusionary rule to apply to a procedural violation of Michigan’s statutory warrant requirements. This holding obviated the need to specifically decide the issue of the “joint activity rule,” although the Court, as noted above, expressed its disapproval with the “joint activity” dicta in Pipok and Paladino. After remand in Sobczak-Obetts, the Court of Appeals concluded that it was bound by the decision of the prior panel in the case and that, were it allowed to revisit the issue, it would affirm the “joint activity rule.” People v Sobczak-Obetts, 253 Mich App 97, 105 (2002). The Michigan Supreme Court then denied leave to appeal. People v Sobczak-Obetts, 467 Mich 915 (2002).

2.3

Description of the Place to be Searched
A. Specific Description of Premises to be Searched
The United States and Michigan Constitutions require that a search warrant particularly describe the place to be searched. See US Const, amend IV (“no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched . . .”) and Const 1963, art I, § 11 (“No warrant to search any place or to seize any person or things shall issue without describing them . . .”). This “specificity” requirement is also embodied in MCL 780.654, which states in part: “Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized.” For multi-unit dwellings, i.e., apartment buildings, hotels, and rooming houses, the warrant “must specify the particular sub-unit to be searched, unless the multi-unit character of the dwelling is not apparent and the police officers did not know and did not have reason to know of its multi-

Page 6

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

unit character.” People v Toodle, 155 Mich App 539, 545 (1986); People v Franks, 54 Mich App 729, 732-733 (1974). The place to be searched must be described with sufficient precision so as to exclude any and all other places. Thus, ambiguous phrases must be carefully avoided, especially when describing a specific unit in a multiunit dwelling.* If a street address or unit number is unavailable, the unit should be described using precise geographical references, as follows: Example of a precise geographical description: “All rooms accessible from the eastern most exterior door on the north side of the building” Example of an imprecise geographical description: “All rooms accessible from the eastern left-hand door of the building.” Although specific addresses should be used when available, an inaccurate address will not always invalidate a search warrant. See People v Westra, 445 Mich 284, 285-286 (1994) (warrant not invalidated even though the apartment street address and unit number were incorrect since the police made a reasonable inquiry into the premises and address before executing their search).
*Judges should be mindful of boilerplate language in search warrants that may include broad areas to be searched.

B. Scope of Premises Search and Seizure
The scope of a premises search warrant may include the search of all containers that may conceal the object of the search authorized in the warrant. See People Coleman, 436 Mich 124, 130-134 (1990) (defendant’s purse in bedroom of defendant’s home was properly searched as a container that fell within the scope of the warrant, and was not an extension of defendant’s person). This rule applies to locked and unlocked containers. People v Daughenbaugh, 193 Mich App 506, 516 (1992), modified on other grounds 441 Mich 867 (1992). “[A] search warrant for ‘premises’ authorizes the search of all automobiles found on the premises.” People v Jones, 249 Mich App 131, 139 (2002). A search warrant authorizing a search of the grounds or outbuildings within a residence’s curtilage does not violate the Fourth Amendment or Const 1963, art 1, § 11, if the warrant authorized a search of the residence. See People v McGhee, 255 Mich App 623 (2003) (upholding searches of detached garage and fenced-in dog run adjacent to the garage, where warrants were not restricted to a search of the residences only, but also included all “spaces” or “storage areas” accessible from the property addresses).

Description of the Person to be Searched, Searched For, and/or Seized
A. Persons to be Searched
Although search warrants give authority to search the described premises and any specifically identified persons on the premises, it is sometimes unclear whether the warrant authorizes a search of persons who are present on the premises but who were not specifically identified in the search warrant.

*Terry v Ohio, 392 US 1 (1968).

MCL 780.654 requires particularized probable cause for the place and property to be searched, but it does not expressly provide legal requirements for a person to be searched. However, the United States Supreme Court has held that when a search warrant describes persons to be searched, it “must be supported by probable cause particularized with respect to that person.” Ybarra v Illinois, 444 US 85, 91 (1979) (warrant to search public bar and bartender did not extend to a Terry* pat-down search of bar patrons present on the premises since the patrons were not described or named in the warrant as persons known to purchase drugs at that location, and since there was no reasonable belief that patrons were armed or dangerous). Compare, however, People v Jackson, 188 Mich App 117, 121 (1990), where the Court of Appeals distinguished Ybarra and upheld a Terry pat-down search of defendant who arrived at the alleged drug-house during the execution of the search warrant (“[Ybarra] involved an unjustified cursory search of patrons in a public bar, whereas this case deals with the search of an individual at a residence targeted for drug sales, which was conducted in light of various threats made against the searching officers”). “The places and persons authorized to be searched by a search warrant must be described sufficiently to identify them with reasonable certainty so that the object of the search is not left in the officer’s discretion.” People v Kaslowski, 239 Mich App 320, 323 (2000). In general, a search warrant authorizing a search of the premises and named or described persons does not authorize the search of those persons not named or described in the warrant. People v Burbank, 137 Mich App 266, 270-271 (1984). However, in People v Arterberry, 431 Mich 381, 383 (1988), the Michigan Supreme Court held that when a search of private premises pursuant to a warrant reveals controlled substances, police have probable cause to arrest and search incident to arrest occupants of the premises who were not named in the warrant. The occupants may be arrested for loitering in place of illegal occupation or business. The holding in Arterberry is consistent with Michigan v Summers, 452 US 692, 705 (1981), which held that a warrant to search a residence for contraband implicitly carries with it the limited authority to detain, but not search, occupants of the premises while a proper search of the home is conducted. Once evidence to establish probable cause to arrest an occupant is found, that person’s arrest and search incident thereto is constitutionally permissible.

Page 8

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

An “occupant” has been construed to include a nonresident who is present at the scene of a search when police arrive, United States v Fountain, 2 F3d 656, 663 (CA 6, 1993), overruled on other grounds 194 F3d 708, 717 (CA 6, 1999), and an individual who may approach a property being searched pursuant to a warrant, pause at the property line, and then flee when officers tell him or her to stop. Burchett v Kiefer, 310 F3d 937, 933-934 (CA 6, 2002). A person on the premises at the time of the execution of the warrant may be searched without a warrant if probable cause exists independently of the search warrant to search that particular person. People v Cook, 153 Mich App 89, 91-92 (1986). A search may also be made of a person, even though the search warrant does not specifically authorize the search of a person, if the affidavit in support of the search warrant establishes probable cause to support the search. People v Jones, 162 Mich App 675, 677-678 (1987). To summarize, the following legal requirements apply to search warrants describing a person to be searched:
 The search warrant must be supported with probable cause

particularized to that person. Ybarra v Illinois, 444 US 85, 91 (1979).
 A search warrant for contraband implicitly authorizes the police to

detain all occupants of the premises while the search is conducted. Summers, supra.
 A search warrant for a “public” premises does not authorize a search,

even a pat-down search, of all persons present during the execution of the search warrant, unless the police officer has probable cause independent of the search warrant or affidavit or a reasonable belief that the persons are armed or dangerous. Ybarra, supra.
 A search warrant for a “private” premises where controlled substances

are discovered permits the police to arrest the occupants for loitering in a place of illegal occupation and to search them incident to their arrest. Summers, supra; Arterberry, supra.
 A search warrant for a “private” premises allegedly involving drug

sales permits the police to conduct a pat-down search of all persons arriving at the premises while the search is being conducted. Jackson, supra.

“(b) A bench warrant issued in a criminal case.” MCL 780.652(2). In order to issue a search warrant for a person, the affidavit must establish particularized probable cause to search the location where the person to be searched for and seized may be situated. MCL 780.651(1). Once issued, “[a] search warrant shall be directed to the sheriff or any peace officer, commanding the sheriff or peace officer to search the house, building, or other location or place, where the person, property, or thing for which the sheriff or peace officer is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized.” MCL 780.654(1).

2.5

Description of Property to be Seized
General searches are prohibited under the Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11, which requires warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized. . . .” See also MCL 780.654 (“[e]ach warrant shall designate and describe the . . . property or thing to be seized”), and People v Collins, 438 Mich 8, 37-38 (1991) (“the warrant must set forth, with particularity, the items to be seized.”) The purpose of the particularization requirement under the United States and Michigan Constitutions and MCL 780.654 is to provide reasonable guidance to the police officers and to prevent the exercise of undirected discretion in determining what is subject to seizure. People v Fetterley, 229 Mich App 511, 543 (1998); People v Taylor, 93 Mich App 292, 298-299 (1979). The degree of specificity required depends upon the circumstances and types of items involved. People v Zuccarrini, 172 Mich App 11, 15 (1988). In Zuccarrini, the Court of Appeals found that descriptions in a warrant of “all money and property acquired through the trafficking of narcotics,” and “ledgers, records or paperwork showing trafficking in narcotics,” were sufficiently particular since the executing officers’ discretion in determining what was subject to seizure was limited to items relating to drug trafficking. Id. at 16. In People v Martin, 271 Mich App 280, 304-305 (2006), the Court of Appeals cited People v Zuccarini, 172 Mich App 11 (1988), discussed above, in support of its ruling that warrants obtained to search several structures for evidence of prostitution and drug trafficking described with sufficient particularity the items to be seized. According to the Martin Court: “[T]he descriptions of the items to be seized from these three locations was sufficiently particularized. The search warrants authorized the search for equipment or written documentation used in the reproduction or storage of the activities and day-to-day operations of the bar. This sentence is further qualified by the

position from which he viewed the incriminating evidence. Fletcher, supra at 551. The invalidity of a portion of a search warrant does not require suppression of all seized evidence. Instead, trial courts are to sever any tainted portions of the warrant—e.g., those portions that lack probable cause or do not sufficiently describe the place, property, or person—from the valid portions. The Court of Appeals, in People v Kolniak, 175 Mich App 16, 22-23 (1989), explained severance as follows: “Severance does not ratify the invalid portions of the warrant, but recognizes that we need not completely invalidate a warrant on the basis of issues that are not related to the evidence validly seized. Where items are validly seized, a defect in a severable portion of the warrant should not be used to suppress the validly seized evidence.” See also People v Melotik, 221 Mich App 190, 202-203 (1997), where the Court of Appeals remanded the case to the district court to “consider whether the facts contained in the second affidavit, after redaction of the facts arising solely from defendant’s inadmissible statement, established probable cause to issue the second warrant.”

2.6

Property Subject to Seizure
In addition to the constitutional “particularity” requirement, Michigan statutory law limits the types of items for which a search warrant may be issued. Under MCL 780.652, a warrant may be issued to search for and seize any property or thing that is: “(a) Stolen or embezzled in violation of a law of this state. “(b) Designed and intended for use, or that is or has been used, as the means of committing a crime. “(c) Possessed, controlled, or used wholly or partially in violation of a law of this state. “(d) Evidence of crime or criminal conduct. “(e) Contraband. “(f) The body or person of a human being or of an animal that may be the victim of a crime. “(g) The object of a search warrant under another law of this state providing for the search warrant. If there is a conflict between this act and another search warrant law, this act controls.”

Search Warrant Requirements for Monitoring and Recording Private Conversations
A. Third-Party Monitoring (Wiretaps)
The United States Supreme Court has held that third-party monitoring, e.g., the wiretapping of private conversations, is subject to the Fourth Amendment warrant requirements if done without the consent of either party. Katz v United States, 389 US 347, 358-359 (1967).

B. Participant Monitoring by Law Enforcement
A search warrant is not required when a law enforcement officer electronically monitors or records a conversation between an informant and another person as long as one of the participants to the conversation consents to the conversation. People v Collins, 438 Mich 8, 40 (1991).

C. Participant Monitoring by Private Citizens
Michigan’s eavesdropping statute makes it a felony to eavesdrop on a “private conversation” without the consent of all parties to the conversation. MCL 750.539c provides: “Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs, or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.” In People v Stone, 463 Mich 558 (2001), the Michigan Supreme Court held that the eavesdropping statute does not preclude a cordless telephone conversation from being deemed a “private conversation,” even though available technology, such as a police scanner, may provide a means for private citizens to eavesdrop on those conversations. According to the Court, a “private conversation” means “a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance.” Id. at 563. See also Dickerson v Raphael, 461 Mich 851 (1999) (a “private conversation” depends on whether the person conversing “intended and reasonably expected that the conversation was private, not whether the subject matter was intended to be private,” and a participant may “not unilaterally nullify other participants’ expectations of privacy by secretly broadcasting the conversation”). Recordings made without a search warrant and in violation of Michigan’s eavesdropping statute are admissible in criminal cases. In People v Livingston, 64 Mich App 247 (1975), the Court of Appeals concluded that a search warrant was not required where the tape recordings were done by an individual in his capacity as a private citizen, not as an agent of the police. Noting that the Legislature did not put an exclusionary rule in the statute, the Court stated that “we will not judicially create a remedy that the Legislature chose not to create.” Id. at 255.

2.8

Probable Cause Determination
An affidavit in support of a search warrant must set forth the grounds and establish probable cause to support the issuance of a warrant. See Spinelli v United States, 393 US 410, 413 n 3 (1969) and MCL 780.653 (“[t]he magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her”). See also People v Kaslowski, 239 Mich App 320, 323 (2000) (a search warrant may not be issued unless probable cause exists to justify the search). Oral testimony not reduced to writing may not be used to supplement the information contained

Page 14

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

in the affidavit. People v Sloan, 450 Mich 160, 177-178 (1995), overruled on other grounds 460 Mich 118, 123-124 (1999). All search warrants, including the underlying affidavits, are to be read in a common-sense and realistic manner. Illinois v Gates, 462 US 213, 230-232 (1983).

623 (2003), where the Court of Appeals upheld as sufficient an affidavit supporting a search warrant for records and proceeds of narcotics trafficking because: “the affidavit reflected a prolonged investigation, and it was not apparent whether alternative investigative techniques were available to update the probability that the evidence was presently on the property. . . . Further, in light of (1) the large amounts of money exchanged, (2) the quantities involved, (3) the investigating officer’s experience, and (4) the duration of the enterprise and testimony provided to the grand jury that implicated defendant McGhee, there was a fair probability that contraband would be found on the premises.” [Citation omitted.] McGhee, supra at 636. An application to seize items protected under the First Amendment need not be evaluated under a higher standard of probable cause than other areas of Fourth Amendment law. New York v PJ Video, Inc, 475 US 868, 874 (1986). See also White Fabricating Co v United States, 903 F2d 404, 411 (CA 6, 1990) (there is no “higher” standard for probable cause for issuance of a warrant required in First Amendment cases). Search warrant affidavits are presumed to be valid. People v Poindexter, 90 Mich App 599, 604 (1979), quoting Franks v Delaware, 438 US 154, 171-172 (1978). However, a defendant may challenge the veracity of an allegation contained in a search warrant affidavit and request a court to order an evidentiary hearing to determine the veracity of the allegations contained in a search warrant affidavit. Poindexter, supra at 604-610. To mandate such a hearing, the defendant must: (1) allege deliberate falsehood or reckless disregard for the truth, and (2) support the allegation with an offer of proof that is more than conclusory, and that is supported by more than a mere desire to cross-examine. Id. at 604, quoting Franks, supra at 171-172. To obtain suppression of evidence based on alleged false information in an affidavit, the defendant must show, by a preponderance of the evidence, that (1) the affiant knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit; and (2) that false information was necessary to a finding of probable cause. People v Williams, 240 Mich App 316, 319320 (2000). See People v Mullen, 282 Mich App 14, 22-27 (2008), where the Michigan Court of Appeals found that despite a police officer’s intentional or reckless omission of material information from the affidavit and his intentional or reckless inclusion of false information in the affidavit, probable cause still existed to issue a search warrant. In Mullen, the defendant was stopped and arrested for operating a motor vehicle while intoxicated. Mullen, supra at 20. The arresting police officer filed an affidavit seeking a search warrant to test the defendant’s blood alcohol content. Id. at 19. The trial court determined that the officer both included false information in and omitted material information from the affidavit. Id. at 23. For example, although the officer failed to properly conduct a few of the field sobriety tests, the officer indicated that the defendant performed poorly on the tests. Id. at 20. In
Page 16 Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

addition, the officer failed to indicate that the defendant had a piece of paper in his mouth a few minutes before taking a preliminary breath test (PBT). Id. The Michigan Court of Appeals agreed with the trial court’s factual determinations, but disagreed with its decision to suppress the evidence because “the evidence presented . . . did not establish that the 0.15 PBT test result was significantly unreliable so as to preclude the reasonable belief by a police officer or a magistrate that defendant’s blood might contain evidence of intoxication. Given the absence of any basis to significantly call into question the 0.15 PBT result, and given the other circumstantial evidence that defendant was intoxicated, we find that the circuit court erred in determining that a reasonable magistrate would not have found probable cause to issue a search warrant.” Id. at 28. “Where the defendant challenges the truth of facts alleged in the affidavit, our courts have struck only the challenged portions of the warrant or its affidavit. In those cases, if enough substance remains to support a finding of probable cause the warrant is valid.” People v Kolniak, 175 Mich App 16, 22 (1989).

time should not be too remote. People v Mushlock, 226 Mich 600, 602 (1924). “[T]he test of remoteness is a flexible and reasonable one depending on the facts and circumstances of the particular case in question.” People v Smyers, 47 Mich App 61, 73 (1973). In People v Wright, 367 Mich 611, 614 (1962), the Supreme Court held that an affidavit based on information existing six days before the issuance of the warrant was too stale to support the warrant. See also People v Broilo, 58 Mich App 547, 550-552 (1975) (affidavit based on drug sales to a confidential informant made eight and ten days before issuance and execution of warrant deemed too stale to support warrant). However, see Smyers, supra at 72-73 (a six-day delay between issuance of warrant and affiant’s visit to defendant’s home and observation of stolen cocktail dress deemed not too remote). See also People v Berry, 84 Mich App 604 (1970) and People v White, 167 Mich App 461 (1988), where the Court of Appeals found that information several months old (and other information nearly one year old) was deemed sufficiently fresh in cases where the facts revealed a continuing criminal enterprise. See also United States v Pinson, 321 F3d 558 (CA 6, 2003) (a three-day delay between the confidential informant’s controlled purchase and the issuance and execution of the search warrant deemed not too stale, since it was reasonable to conclude that police would still find narcotics, paraphernalia, or marked money in the residence three days after the drug purchase). In People v David, 119 Mich App 289, 296 (1982), the Court of Appeals held that although a three-day delay between the time of a single controlled drug buy and the presentation of the affidavit to the magistrate does not automatically render the affidavit stale, it did in this case because there was no evidence to suggest that defendant would still possess the marijuana three days after the sale. In People v Russo, 185 Mich App 422, 435 (1990), the Court of Appeals found that an affidavit based on information seven years old, which contained no allegations of ongoing criminal activity, and which gave no reasons why the passage of time was irrelevant, was not sufficiently fresh to presume that the items sought still remained on the premises. See also People v Siemieniec, 368 Mich 405, 407 (1962) (information that defendant illegally sold liquor four days earlier, without evidence of continuing illegal activity, is too stale to support a probable cause finding).

C. Anticipatory Probable Cause

The Michigan Court of Appeals has upheld the use of “anticipatory” search warrants, i.e., “warrant[s] based upon . . . affidavit[s] showing probable cause that at some future time (but not presently) certain evidence will be located at a specified place,” finding them not in contravention of constitutional provisions. People v Kaslowski, 239 Mich App 320, 324 (2000). In Kaslowski, a police officer working with the Drug Enforcement Administration spotted a suspicious looking package at a United Parcel Service branch office. A dog trained to identify narcotics reacted positively to
Page 18 Monograph 2—Issuance of Search Warrants (2006–April 2009)

particularity requirement does not include the conditions precedent to execution of the warrant.” Id. at 97-98.

D. Conclusory Statements
Probable cause determinations must be made from the facts and circumstances contained within the affidavit, and not from any conclusory statements. In People v Sloan, 450 Mich 160, 168-169 (1995), overruled on other grounds 460 Mich 118 (1999), the Michigan Supreme Court stated the following regarding a magistrate’s review of search warrant affidavits: “[T]he magistrate’s decision [must be] based on actual facts--not merely the conclusions of the affiant. One of the main purposes of the warrant application procedure is to have a neutral and detached magistrate determine whether probable cause exists. This purpose cannot be achieved if the magistrate simply adopts unsupported conclusions of the affiant. Accordingly, at a minimum, a sufficient affidavit must present facts and circumstances on which a magistrate can rely to make an independent probable cause determination.” See also People v Rosborough, 387 Mich 183 (1972), where the Supreme Court made the following comments regarding affidavits: “The affidavit must contain facts within the knowledge of the affiant, as distinguished from mere conclusions or belief. An affidavit made on information and belief is not sufficient. The affidavit should clearly set forth the facts and circumstances within the knowledge of the person making it, which constitute the grounds of the application. The facts should be stated by distinct averments, and must be such as in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them.” Id. at 199, quoting 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 868, p 1129.

2.9

Affidavits Based upon Hearsay Information
An affidavit may be based upon hearsay information supplied to the affiant by a named or unnamed person, subject to two requirements. MCL 780.653, which was amended by 1988 PA 80, effective June 1, 1988, requires an affidavit to contain the following:

Page 20

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

“(a) If the person is named, affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information. “(b) If the person is unnamed [i.e., a confidential informant], affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable.” [Emphasis added.] The significance of the 1988 amendment to MCL 780.653(a)-(b) is that it makes Michigan’s search warrant requirements, at least when the search warrant affidavit is based on hearsay from an unnamed (i.e., confidential) informant, consistent with the “Aguilar-Spinelli” two-prong test. This test, as espoused in Aguilar v Texas, 378 US 108 (1963) and Spinelli v United States, 393 US 410 (1969), allows a choice between informant credibility and information reliability. However, the United States Supreme Court abandoned the “Aguilar-Spinelli” test in Illinois v Gates, 462 US 213 (1983), in favor of a “totality of the circumstances” test, a lower standard in assessing the sufficiency of an affidavit. In Michigan, a split of authority exists on whether the “totality of the circumstances” analysis or the “Aguilar-Spinelli” test is required to test the sufficiency of search warrant affidavits. See People v Brown, 132 Mich App 128, 130-131 (1984) (applying more stringent “Aguilar-Spinelli” analysis under Michigan Constitution); People v Cortez, 131 Mich App 316, 328-330 (1984) (applying less stringent “totality of circumstances” test without distinguishing federal or state constitution); and People v Gentry, 138 Mich App 225, 227, 232 (1984) (applying “totality of circumstances” test under the assumption that federal constitutional question was raised). Although a search warrant affidavit may not name the person who was the source of the information, Michigan courts may apply “a common-sense reading of the affidavit” to determine who was the actual source of the allegations underlying the search warrant affidavit, thus making an unnamed person a named one. See People v Powell, 201 Mich App 516, 522 (1993) (a “common-sense reading of the affidavit, taken as a whole, yields the conclusion that the affiant obtained her information directly from the named crime victim,” thus making the victim not an “unidentified informant”). Michigan courts consider identified citizens, identified crime victims, and police officers to be presumptively reliable and thus not subject to the requirements once applied to confidential informers under the “AguilarSpinelli” test. Id. at 522-523. The Michigan Supreme Court has held that the exclusionary rule does not apply to evidence resulting from a search warrant obtained in violation of the affidavit requirements of MCL 780.653, unless failure to apply the rule would

A. Informant Must Speak with Personal Knowledge
This requirement means that an informant who supplied the factual information in the affidavit must have personally witnessed the facts which are attested to. It does not mean that an affidavit may not contain multiple hearsay. Multiple hearsay is acceptable as long as the ultimate source of the information spoke with personal knowledge. If the source is unnamed, the source must also be shown to be credible or that the information provided by the source is reliable. See MCL 780.653(b) and People v Osborn, 122 Mich App 63, 68-69 (1982).
*Reversing People v Keller, 270 Mich App 446 (2006).

It is unnecessary to determine for purposes of MCL 780.653 whether an anonymous informant had personal knowledge of the information contained in the affidavit on which a search warrant is based when the affidavit contains additional information sufficient in itself to support a finding of probable cause. People v Keller, 479 Mich 467, 477 (2007).* In Keller, the information contained in the affidavit supported the magistrate’s conclusion that it was fairly probable that contraband would be found in the defendants’ home because the affidavit was based in part on the small amount of marijuana discovered in the defendants’ trash. Id. Although the evidence discovered in the defendants’ trash did not support the anonymous informant’s allegation that the defendants were engaged in drug trafficking, the evidence from the defendants’ trash adequately established the probable cause necessary to justify a search of the defendants’ home for additional contraband. Id. at 483. According to the Court, “Because this officer uncovered direct evidence of illegal activity, the marijuana, it was unnecessary to delve into the veracity of the source.” Id. at 477..

B. Informant Must Be Credible or Information Must Be Reliable
A search warrant affidavit must contain facts within the knowledge of the affiant, not merely the affiant’s conclusions or beliefs. People v Sloan, 450 Mich 160, 168-169 (1995), overruled on other grounds 460 Mich 118 (1999) and 468 Mich 488 (2003); see also MCL 780.653 (“The magistrate’s findings of . . . probable cause shall be based on all the facts related within the affidavit made before him or her”). Thus, a statement in the affidavit that the informant is a “credible person” does not satisfy this statutory requirement. People v Sherbine, 421 Mich 502, 511 n 16 (1984), overruled on other grounds 468 Mich 488 (2003). Regarding “informant credibility,” the Supreme Court in Sherbine, supra at 510 n 3, gave three examples of factual information that is probative of “informant credibility”: •
Page 22

A course of past performance in which the informant has supplied reliable information;
Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

• •

Admissions against the informant’s penal interest; and Corroboration of non-innocuous details of the informant’s story by reliable independent sources or police investigation.

The statutory alternative of “informational reliability” must also be established by factual averments in the affidavit. In most cases, once “informant credibility” is established, it logically follows that the information is reliable, and vice versa. However, a subtle distinction may be drawn in situations where the method of procuring the information is unknown. The United States Supreme Court, in Spinelli v United States, 393 US 410, 416 (1969), explained this circumstance as follows: “In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Thus, by describing the criminal activity in detail, the reliability of the information can be proven independent of informant credibility.

When, in addition to information obtained from an anonymous informant, an affidavit in support of a search warrant is based on other information sufficient in itself to justify the magistrate’s finding of probable cause, it is not necessary for purposes of MCL 780.653 to determine whether the informant was credible or whether the information provided was reliable. People v Keller, 479 Mich 467, 477 (2007). In Keller, the small amount of marijuana discovered in the defendants’ trash was itself sufficient to support the conclusion that there was a fair probability that evidence of illegal activity would be found in the defendants’ home. Id. Therefore, even though the anonymous tip prompted the initial investigation into the defendants’ possible illegal activity, the marijuana alone supports the probable cause necessary to issue a search warrant and “the statutory requirement that an anonymous tip bear indicia of reliability does not come into play.” Id. at 483. Even where a search warrant issued from an affidavit is later found insufficient in light of the requirements of MCL 780.653, the evidence obtained in execution of the “faulty” warrant may still be admissible against a defendant. In People v Hawkins, 468 Mich 488, 501 (2003), the defendant moved to suppress evidence obtained pursuant to a search warrant based on an affidavit that failed to satisfy the requirements of MCL 780.653(b) for an affiant’s reliance on unnamed sources. In deciding that the exclusionary rule did not apply to the evidence obtained in Hawkins, the Court overruled in part its previous rulings in People v

Sloan, 450 Mich 160 (1995) and People v Sherbine, 421 Mich 502 (1984). Hawkins, supra at 502. According to the Hawkins Court: “[W]here there is no determination that a statutory violation constitutes an error of constitutional dimensions, application of the exclusionary rule is inappropriate unless the plain language of the statute indicates a legislative intent that the rule be applied.” Hawkins, supra at 507. The Court predicted that some statutory violations would be of constitutional magnitude, and the exclusionary rule would likely be appropriate to suppress evidence obtained from warrants issued on inadequate affidavits. However, the Court concluded that “[n]othing in the plain language of §653 provides us with a sound basis for concluding that the Legislature intended that noncompliance with its affidavit requirements, standing alone, justifies application of the exclusionary rule to evidence obtained by police in reliance of a search warrant.” Hawkins, supra at 510.

2.10
*MCL 257.625h(2) no longer governs the admission of PBT results. However, see MCL 257.625a(2)(b), which governs such results.

Affidavits Based on Results of Preliminary Breath Test
The results of a preliminary breath test (PBT) may be used to establish probable cause in a search warrant affidavit. In People v Tracy, 186 Mich App 171 (1990), the Court of Appeals interpreted MCL 257.625h(2),* the statutory provision prohibiting the use of PBT results in criminal prosecutions, and held that a magistrate may consider PBT results when issuing a search warrant, even though a person’s PBT results are generally prohibited from admission into evidence during any criminal trial. The Court concluded that a police officer’s administration of the PBT, and thereafter going before a magistrate to obtain a search warrant, was investigatory activity and not within the definition of a criminal prosecution. Thus, because the search warrant preceded the appearance ticket, the Court found that the PBT results were used before the commencement of criminal prosecution, and the restrictions of MCL 257.625h(2) did not apply. Tracy, supra at 179.

2.11

Verifying and Executing the Affidavit
MCL 780.651(1) provides: “When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases, and the affidavit establishes grounds for issuing a warrant under this act, the magistrate, if he or she is satisfied that there is probable cause for the search, shall issue a warrant to search the house, building, or other location or

Page 24

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

place where the property or thing to be searched for and seized is situated.” Once the court is satisfied that the warrant is in proper form and that the affidavit establishes probable cause to believe the items to be seized may be found in the place to be searched, it must swear the affiant and ask him or her to state that the averments in the affidavit are true to the best of his or her information and belief. After the affiant has signed the affidavit, the court should sign and date it. This indicates the affidavit was signed and subscribed in the presence of the court on that date. Following this, the court should sign and date the search warrant, thereby “issuing” the warrant. The court must retain the original affidavit and warrant for its own records. When using SCAO Form MC 231, the court’s copy is noted in red ink at the bottom of the page. The following subsections address the legal requirements for executing affidavits and search warrants.

A. Affiant’s Signature Requirement
The court should require the affiant to sign the affidavit since a search warrant based upon an unsigned affidavit is presumed to be invalid. However, this presumption of invalidity may be rebutted by the prosecutor in a supplemental hearing by showing that the affidavit was made on oath to the magistrate. People v Mitchell, 428 Mich 364, 368 (1987). See also People v Tice, 220 Mich App 47, 52-53 (1996) (remanded to the trial court for a determination of whether the facts in the search warrant affidavit were presented to the magistrate under some form of oath or affirmation).

B. Magistrate’s Signature Requirement
A search warrant that is unsigned by the magistrate is presumptively invalid. However, “this presumption may be rebutted with evidence that, in fact, the magistrate or judge did make a determination that the search was warranted and did intend to issue the warrant before the search.” People v Barkley, 225 Mich 539, 544 (1997). In Barkley, the Court of Appeals, in concluding that the prosecutor amply rebutted the invalidity of the search warrant even though one of four copies of the search warrant remained unsigned by the magistrate, found that the Mitchell, supra, treatment of unsigned affidavits was equally appropriate for unsigned search warrants. In deciding to apply the same procedure for unsigned affidavits and warrants, the Court stated: “To hold otherwise and invalidate a warrant for lack of a signature when there is other evidence that the judge or magistrate intended that the warrant should issue would be “a classic case of exaltation of form over substance.’” Barkley, supra at 545.

Note: Although two previous Court of Appeals opinions have held that a magistrate’s failure to sign a warrant invalidates the warrant and requires suppression of evidence, those opinions were issued before November 1, 1990 and are thus not binding precedent in light of the opinion in Barkley, supra, decided in 1997. MCR 7.215(J)(1). See People v Locklear, 177 Mich App 331 (1989) (invalidating warrant under Const 1963, art 1, § 11 because magistrate failed to sign the warrant until three days after execution of warrant) and People v Hentkowski, 154 Mich App 171 (1986) (invalidating warrant because judge signed affidavit and not the warrant).

C. Information in Affidavit and Supplementation with Oral Statements
In determining whether there is probable cause to issue a search warrant, the magistrate must consider only the information contained in the affidavit. See MCL 780.653 (“The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her”). Additionally, the information in an affidavit may not be supplemented with oral statements given on oath to the magistrate when no contemporaneous record of these statements has been made. See People v Sloan, 450 Mich 160, 183 (1995) (“[R]eviewing courts may not consider sworn, yet unrecorded, oral testimony presented to a magistrate when assessing the magistrate’s probable cause determination”).

2.12

Executing the Search Warrant
Michigan’s so-called “knock-and-announce” statute is contained in MCL 780.656, and provides as follows: “The officer to whom a warrant is directed, or any person assisting him, may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his authority and purpose, he is refused admittance, or when necessary to liberate himself or any person assisting him in execution of the warrant.” Knock-and-announce rules: “1) reduce[] the potential for violence to both the police officers and the occupants of the house into which entry is sought; 2) curb[] the needless destruction of private property; and 3) protect[] the individual’s right to privacy in his or her own house.” United States v Pinson, 321 F3d

telephone call first, we conclude that the time which elapsed between the announcement and entry was sufficient under the circumstances to satisfy the reasonableness requirement of the Fourth Amendment.” Pinson, supra at 568. [Citations omitted.] When law enforcement officers violate the knock-and-announce rule before executing a search warrant, application of the exclusionary rule is not the proper remedy. Hudson v Michigan, 547 US 586, 593-594 (2006). In Hudson, police officers arrived at the defendant’s home with a search warrant authorizing them to search for drugs and firearms. Outside the entrance to the defendant’s home, the officers announced their presence and waited three to five seconds before entering the house through the unlocked front door. Officers found and seized both drugs and firearms from the home. The Michigan Court of Appeals, relying on Michigan Supreme Court precedent, ruled that application of the exclusionary rule is not the proper remedy when evidence is seized pursuant to a warrant but in violation of the knock-and-announce rule. Hudson, supra at 588-589. The Hudson Court restated the three interests protected by the common-law knock-and-announce rule. First, compliance with the knock-and-announce rule protects the safety of the resident and the law enforcement officer because it minimizes the number of situations when “an unannounced entry may provoke violence in supposed self-defense by the surprised resident.” Secondly, when law enforcement officers delay entry by knocking and announcing their presence, a resident is given the opportunity to cooperate with the officers “and to avoid the destruction of property occasioned by a forcible entry.” Finally, when officers avoid a sudden entry into a resident’s home, it protects a resident’s dignity and privacy by affording the resident an opportunity “to collect oneself before answering the door.” The Court found none of those interests present in this case: “What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Hudson, supra at 594 (emphasis in original). The Court further supported its conclusion by referencing three of its own prior opinions. In Segura v United States, 468 US 796 (1984), the Court distinguished the effects of “an entry as illegal as can be” from the effects of the subsequent legal search and excluded only the evidence obtained as a result of the unlawful conduct. In Segura, the evidence at issue resulted from a legal search warrant based on information obtained while police officers occupied an apartment they had illegally entered. Because the warrant was not derived from the officers’ initial entry, the Court did not exclude the evidence seized under the warrant. As applied to the Hudson case, the Court noted that
Page 28 Monograph 2—Issuance of Search Warrants (2006–April 2009)

shall give to the person a copy of the tabulation upon completion, or shall leave a copy of the warrant and tabulation at the place from which the property or thing was taken. The officer is not required to give a copy of the affidavit to that person or to leave a copy of the affidavit at the place from which the property or thing was taken.”
*This provision was added by 2002 PA 112, effective April 22, 2002.

A copy of the affidavit becomes part of the “copy of the warrant” that must be provided or left under MCL 780.655. People v Garvin, 235 Mich App 90, 99 (1999). However, a failure to comply with this statutory requirement does not require suppression of the seized evidence. Id. See also MCL 780.654(3), which allows a magistrate to order the suppression of the affidavit in circumstances necessitating the protection of an investigation or the privacy or safety of a victim or witness:* “Upon a showing that it is necessary to protect an ongoing investigation or the privacy or safety of a victim or witness, the magistrate may order that the affidavit be suppressed and not be given to the person whose property was seized or whose premises were searched until that person is charged with a crime or named as a claimant in a civil forfeiture proceeding involving evidence seized as a result of the search.” Additionally, the officer must promptly file the tabulation with the court or magistrate. MCL 780.655(2) provides: “The officer shall file the tabulation promptly with the court or magistrate. The tabulation may be suppressed by order of the court until the final disposition of the case unless otherwise ordered. The property and things that were seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence in any trial.” After the execution of the warrant, seized property must be returned and disposed of according to MCL 780.655(3), which provides: “As soon as practicable, stolen or embezzled property shall be restored to the owner of the property. Other things seized under the warrant shall be disposed of under direction of the court or magistrate, except that money and other useful property shall be turned over to the state, county or municipality, the officers of which seized the property under the warrant. Money turned over to the state, county, or municipality shall be credited to the general fund of the state, county, or municipality.” A failure to strictly comply with the requirements of MCL 780.655 does not by itself require suppression of seized evidence. In People v Sobczak-Obetts, 463 Mich 687, 712-713 (2001), the Supreme Court held that the trial court and Court of Appeals erred by applying the exclusionary rule to conduct that

Page 30

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

amounted to a technical violation of MCL 780.655, i.e., an officer’s failure to provide a copy of the affidavit in support of the warrant to defendant at the time of the search, since there was no discernable Legislative intent that a violation of MCL 780.655 requires suppression, and since there was no police misconduct to necessitate application of the exclusionary rule, which is predicated upon deterring such conduct.

2.13

The Exclusionary Rule and Good Faith Exception
The exclusionary rule “forbids the use of direct and indirect evidence acquired from governmental misconduct, such as evidence from an illegal police search.” People v Stevens, 460 Mich 626, 636 (1999). It “operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect.” Arizona v Evans, 514 US 1, 10 (1995). The exclusionary rule was first applied in Michigan in People v Margelis, 217 Mich 423 (1922). The federal exclusionary rule was made applicable to the states via the Due Process Clause of the Fourteenth Amendment in Mapp v Ohio, 367 US 643 (1961). When determining whether evidence should be excluded, a court must “evaluate the circumstances of [the] case in the light of the policy served by the exclusionary rule . . . .” Brown v Illinois, 422 US 590, 604 (1975). The purpose of the exclusionary rule is to deter the police from violations of constitutional and statutory protections. Nix v Williams, 467 US 431, 442-443 (1984). “The exclusionary rule is not meant to put the prosecution in a worse position than if the police officers’ improper conduct had not occurred, but, rather, it is to prevent the prosecutor from being in a better position because of that conduct.” Stevens, supra at 640-641, citing Nix, supra at 443. The Michigan Constitution contains an anti-exclusionary provision prohibiting the exclusion from evidence of various items of property or contraband seized by a peace officer outside the curtilage of a dwelling house. Const 1963, art 1, § 11 provides, in pertinent part: “The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive, or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.” The foregoing constitutional provision compels no higher standard of reasonableness for searches than the standard imposed by federal law. See People v Carter, 250 Mich App 510, 519-520 (2002) (“The language of the constitutional provision and its history ‘precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth

Amendment,’” quoting People v Moore, 391 Mich 426, 435 (1974)). For a detailed history of this anti-exclusionary provision, and its predecessor, see People v Nash, 418 Mich 196, 208-215 (1983). In United States v Leon, 469 US 981 (1984), the United States Supreme Court created a “good faith” exception to the exclusionary rule, which provides that a defect in the warrant will not lead to suppression of the evidence when there is no police misconduct. In creating this “good faith” exception, the Supreme Court stated that since the exclusionary rule is not contained within the Fourth Amendment, it may be modified by the judiciary. The Supreme Court found that evidence seized in reasonable reliance on a warrant issued by a detached and neutral magistrate should be admissible into evidence. It reasoned that marginal or non-existent benefits produced by suppressing evidence obtained in reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. In Illinois v Krull, 480 US 340, 379 (1987), the United States Supreme Court held that a search made in good faith and reasonable reliance on a statute which authorized the search will not result in exclusion of the evidence, even if that statute is found to be unconstitutional. In People v Hawkins, 468 Mich 488, 500 (2003), the Court observed: “Irrespective of the application of the exclusionary rule in the context of a constitutional violation, the drastic remedy of exclusion of evidence does not necessarily apply to a statutory [or court rule] violation.” (Emphasis in original). According to the Court, the plain language of a court rule or statute determines whether the Legislature intended the exclusionary rule to apply to court rule and statutory violations. If no such language exists, exclusion of evidence may be proper where the statutory or court rule violation permitted discovery of evidence in violation of a defendant’s constitutional rights. Hawkins, supra at 507. The Michigan Supreme Court adopted the “good-faith” exception to the exclusionary rule in People v Goldston, 470 Mich 523 (2004). As adopted by the Michigan Supreme Court in Goldston, supra, “[t]he ‘good faith’ exception [to the exclusionary rule] renders evidence seized pursuant to an invalid search warrant admissible as substantive evidence in criminal proceedings where the police acted in reasonable reliance on a presumptively valid search warrant that was later declared invalid [internal citation omitted].” People v Hellstrom, 264 Mich App 187, 193 (2004). Whether an officer’s reliance on a search warrant is objectively reasonable is determined by the information contained in the four corners of the affidavit; therefore, the decision whether the good-faith exception to the exclusionary rule applies to evidence seized pursuant to an invalid warrant must be made

Even where a search warrant is based in part on tainted evidence obtained as a result of an officer’s Fourth Amendment violation—“fruit of the poisonous tree”—the good-faith exception to the exclusionary rule may apply to evidence seized pursuant to the warrant if “‘an objectively reasonable officer could have believed the seizure valid.’” United States v McClain, 430 F3d 299, 308 (CA 6, 2005), quoting United States v White, 890 F2d 1413, 1419 (CA 8, 1989). In McClain, after a nearby resident reported that lights were on at an unoccupied house in the neighborhood, police officers searched the residence without a warrant and without having probable cause to conduct a search of the residence. McClain, supra at 302–303. Officers entered the residence through a door that was “slightly ajar” even though the officers “observed no movement in or around the home, no signs of forced entry or vandalism, and no suspicious noises or odors emanating from the house.” Id. at 305–306. During their warrantless search of the home, the officers discovered evidence that the basement was being readied to house “a marijuana-grow operation.” Id. at 303. Because no exception to the warrant requirement justified the warrantless search, the defendant argued that any evidence seized during the “execution of search warrants issued on the basis of evidence obtained as a result of that initial warrantless search” should be suppressed. Id. at 301. The district court agreed with the defendant and suppressed the evidence. McClain, supra at 301–302. The Sixth Circuit Court of Appeals concluded that the good-faith exception to the exclusionary rule applied to the evidence seized as a result of the “tainted” search warrant and reversed the district court’s decision. Id. at 302, 307. According to the Sixth Circuit: “The facts surrounding these officers’ warrantless entry into the house at 123 Imperial Point were not sufficient to establish probable cause to believe a burglary was in progress, but we do not believe that the officers were objectively unreasonable in suspecting that criminal activity was occurring inside [the defendant’s] home, and we find no evidence that the officers knew they were violating the Fourth Amendment by performing a protective sweep of the home. More importantly, the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search, and [the officer’s] warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search. . . . . Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers’ belief in the validity of the search warrants objectively reasonable, we conclude that despite the initial Fourth Amendment violation, the [good faith] exception bars application of the exclusionary rule in this case.” McClain, supra at 308–309. The Sixth Circuit Court of Appeals concluded that the “good-faith” exception to the exclusionary rule is inapplicable to the proceeds of a search warrant that

“Although much of the cited text is dicta with respect to the instant issue, it indicates that evidence obtained by a law enforcement officer with respect to any criminal proceeding falls within the officer’s zone of primary interest. It also appears to suggest that the 1992 evidence should have been excluded. . . . Here, because the evidentiary hearing with respect to the 1992 search indicated that the officer who swore to the affidavit for the warrant provided false statements, the violation was substantial and deliberate, and [the evidence] should have been suppressed.” McGhee, supra at 619-620 (footnote and citations omitted).

2.14

Other Exceptions Applicable to Search Warrants

A. Inevitable Discovery Doctrine
The inevitable discovery doctrine permits evidence discovered as a result of a constitutional violation to be admissible into evidence if the prosecution can establish, by a preponderance of the evidence, that the evidence ultimately or inevitably would have been discovered by lawful means. Nix v Williams, 467 US 431, 443-444 (1984). The Michigan Supreme Court and Court of Appeals have also recognized and adopted the inevitable discovery doctrine. See People v Stevens, 460 Mich 626, 643 (1999) (inevitable discovery doctrine applies to “knockand-announce” reasonableness provisions of Fourth Amendment). See also People v Brezinzski, 243 Mich App 431, 436 (2000) (“[t]he inevitable discovery doctrine is recognized in Michigan and may justify the admission of otherwise tainted evidence that ultimately would have been obtained in a constitutionally accepted manner”). The Michigan Supreme Court set forth three factors to be used when applying the inevitable discovery doctrine: “There are three basic concerns which surface in an inevitable discovery analysis: are the legal means truly independent; are both the use of the legal means and the discovery by that means truly inevitable; and does the application of the inevitable discovery exception either provide an incentive for police misconduct or significantly weaken fourth amendment protection?” Stevens, supra at 638, quoting United States v Silvestri, 787 F2d 736, 744 (CA 1, 1986).

Page 36

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

B. Independent Source Doctrine
The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of illegal activity or any constitutional violation. Segura v United States, 468 US 796, 805, 813816 (1984); Nix v Williams, 467 US 431, 443 (1984). The Michigan Supreme Court and Court of Appeals has recognized and adopted the independent source doctrine. People v Stevens, 460 Mich 626, 636-637 (1999); People v Harajli, 148 Mich App 189, 195 (1986); People v Oswald, 188 Mich App 1, 6-7 (1991); People v Kroll, 179 Mich App 423, 428 (1989). In People v Smith, 191 Mich App 644, 646 (1991), the Court of Appeals held that an unlawful entry by police upon private premises does not require suppression of evidence subsequently discovered on those premises pursuant to a search warrant obtained on the basis of information wholly unconnected with the unlawful entry. See also People v Snider, 239 Mich App 393, 412 (2000), where the Court of Appeals, relying on Smith, supra, upheld the second search of a residence conducted pursuant to a properly issued and executed search warrant, since the warrant provided an independent basis for the second entry and an “independent source” for discovery and seizure of the evidence.

C. Reasonable Mistake Doctrine
The reasonable mistake doctrine provides that when a “reasonable mistake” in the execution of an overly broad search warrant is made, the seized evidence need not necessarily be suppressed from evidence. In Maryland v Garrison, 480 US 79, 80 (1987), the police conducted a search, pursuant to a warrant, of an apartment (McWebb’s) on the third floor of 2036 Park Avenue. The officers eventually became aware that the third floor was actually divided into two apartments, one for McWebb and one for defendant Garrison. Before coming to this realization, and while in defendant Garrison’s apartment, the officers discovered contraband which provided a basis for defendant’s controlled substance conviction. The Supreme Court examined both the validity of the warrant and the reasonableness of its execution. Regarding the validity of the warrant, the Supreme Court stated that the warrant was broader than appropriate, and that the evidence that emerged after issuance of the warrant had no bearing on whether the warrant was valid in the first place. The Court concluded that based on the information that the officers were operating under— albeit mistaken—the warrant was valid when issued. Regarding the reasonableness of the warrant’s execution, the Court stated that since the objective facts available to the officers suggested no distinction between McWebb’s apartment and the third floor apartment, the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.

D. Plain View Doctrine
The plain view doctrine permits a police officer to seize, without a warrant, items in plain view if the items have an “immediately apparent” incriminating character, and if the officer is in a lawful position when viewing the items. People v Champion, 452 Mich 92, 101 (1996), citing Horton v California, 496 US 128, 137 (1990). “Immediately apparent” means that the officers have, without further searching, probable cause to believe the items are subject to seizure. Champion, supra at 102, citing Texas v Brown, 460 US 730, 741-742 (1983). One fundamental characteristic of the plain view doctrine is that it is exclusively a seizure rationale. In other words, no additional searching may be done under this doctrine. Champion, supra at 101, citing Arizona v Hicks, 480 US 321 (1987). In applying the plain-view doctrine, the Michigan Court of Appeals has held that a failure to locate and seize the plain-view contraband used to support the probable cause to make a warrantless search of an automobile renders any further search unreasonable. See People v Martinez, 192 Mich App 57, 64 (1991) (police officer’s observance in plain view, through a frosty car window, of what he thought to be a hand-rolled marijuana cigarette did not establish probable cause to further search the automobile after the alleged cigarette could not be located).

E. Exigent Circumstances Doctrine
The exigent circumstances doctrine permits a warrantless entry by law enforcement officials where “there is [a] compelling need for official action and no time to secure a warrant.” Michigan v Tyler, 436 US 499, 509 (1978). Even though “the precise contours of the exigent circumstances exception remain hazy,” Michigan appellate courts have held that “the risk of destruction or removal of evidence may constitute an exigent circumstance exception to the warrant requirement.” People v Blasius, 435 Mich 573, 583 (1990). See People v Snider, 239 Mich App 393, 407 (2000) and cases cited therein. The Michigan Supreme Court explained the requirements of the exigent circumstances exception as follows: “[W]e hold that the police may enter a dwelling without a warrant if the officers possess probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrators of the suspected crime. The police must further establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. If the police
Page 38 Monograph 2—Issuance of Search Warrants (2006–April 2009)

progress and concerned for his safety and that of others, the officer entered the basement to look for intruders. As he conducted a protective sweep of the basement, the officer noticed another door in the basement. To determine whether an intruder was hiding in the basement room, the officer approached the interior basement door. It, too, was slightly open. The officer testified that he noticed an odor of marijuana as he got closer to the door and “quickly pushed the door open in an attempt to catch anyone inside off guard.” Using his flashlight in the dark room, the officer saw no one in the room. However, the officer did see that the room contained several marijuana plants and grow lights. Based on what the officer observed in the basement room, a search warrant was obtained and the contraband was seized. Id. at 745-747. Because each decision the officer made to further investigate whether a burglary was in progress or an intruder was present in the basement was reasonable under the circumstances, the Court ruled that the officer’s warrantless entry was lawful and that the officer’s movements once inside the basement did not impermissibly exceed the scope of his lawful entry. Brown, supra at 750. The Court further held that, subject to its other requirements, the plain view doctrine authorized the seizure of any contraband the officer saw after he entered the basement. Id. at 748-749. Specifically, the Court noted the following: “In this case, [the officer] responded to a burglar alarm that he knew had been triggered twice in a relatively short period of time and arrived within just a few minutes of the first activation. He was not met by a resident of the house, but by [a] neighbor who directed him to the basement door. The sounding alarm, the lack of response from the house, and the absence of a car in the driveway made it less likely that this was an accidental activation. Investigating, [the officer] found the front door secured but the basement door in the back standing ajar. While [the officer] did not find a broken window or pry marks on the open door, it was objectively reasonable for him to believe that this was not a false alarm but, rather, that the system had recently been triggered by unauthorized entry through the open basement door. These circumstances, including the recently activated basement door alarm and evidence of a possible home invasion through that same door, establish probable cause to believe a burglary was in progress and justified the warrantless entry into the basement.” Id. at 748-749. In Thacker v City of Columbus, 328 F3d 244 (CA 6, 2003), the Sixth Circuit stopped short of concluding that a warrantless entry may be justified solely on the basis of a 911 call placed from the residence into which the entry was made. However, the 911 call’s point of origin was an important factor in the Court’s analysis of “the totality of circumstances” justifying the officers’ warrantless entry. In Thacker, the female plaintiff telephoned 911 to request medical treatment for an injury to the male plaintiff’s wrist. Two paramedics
Page 40 Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

and two police officers responded to the call. The male plaintiff who greeted the officers at the door was bleeding profusely, “[v]isibly intoxicated and immediately belligerent.” Thacker, supra at 249. Among other claims, the plaintiffs brought suit against the two police officers for unlawful entry into their residence. “Although it present[ed] a close question,” the Sixth Circuit held that “the uncertainty of the situation, in particular, of the nature of the emergency, and the dual needs of safeguarding the paramedics while tending to Thacker’s injury, created exigent circumstances here.” Thacker, supra at 254. A local ordinance permitting peace officers to require persons under the age of 21 to submit to a preliminary breath test analysis constitutes an unreasonable search not justified by any warrant exception. Spencer v City of Bay City, 292 F Supp 2d 932, 946 (ED Mich 2003). “Exigent circumstances” cannot be used to justify a warrantless search when the subject of the search is suspected only of committing a minor offense, and the primary purpose of conducting the search is to gather incriminating evidence against the individual. Spencer, supra at 947.

When a defendant is arrested and a cotenant consents to an officer’s entry into the home the cotenant shares with the defendant, the defendant’s invocation of his right to counsel and his right to remain silent does not constitute an objection to the officer’s entry for purposes of suppressing incriminating evidence against the defendant observed by the officer while in the home. People v Lapworth, 273 Mich App 424 (2006). In Lapworth, a cotenant consented to an officer’s request to enter the home the cotenant shared with the defendant in order to use the telephone. While using the telephone, the officer observed a pair of shoes with a tread pattern similar to the pattern found at the scene of the crime for which he had placed the defendant under arrest. The officer did not seize the shoes. The defendant refused the officer’s request to take the shoes and told the officer to get a search warrant. The defendant argued that the shoe evidence was inadmissible against him because it was obtained in violation of his right against unreasonable searches and seizures. According to the defendant, “his invocation of his rights following the Miranda* warnings constituted a tacit objection and negated the consent given by his roommate.” Id. at 428. Said the Court:

*Georgia v Randolph, 547 US 103 (2006). See the April 2006 update to page 34.

“We disagree. First, we think it a rather long stretch to classify either the invocation of the right to remain silent or the right to counsel following Miranda warnings as even a tacit objection to consent to search. Second, the Supreme Court made it clear that ‘a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.’ Accordingly, even if we were to regard an invocation of rights following Miranda warnings as a tacit objection to consent to search, a tacit objection is insufficient under Randolph.”* Lapworth, supra at 428. The Court further noted that although the defendant was under arrest and was seated in the patrol car at the time the cotenant consented to the officer’s entry, “[there was no indication that] the police intentionally removed the [defendant] for the express purpose of preventing the [defendant] from having an opportunity to object.” Id. at 429; Randolph, supra at 121-122.

*The forensic software used by the police did not require that they first obtain the defendant’s username and password.

Where proper consent is given by a third party to search a shared computer’s files, police officers are under no obligation to determine if any of the files are password protected. People v Brown, ___ Mich App ___, ___ (2008). In Brown, the defendant’s landlord allowed him to use a computer owned by the landlord and located in the landlord’s separate residence. The landlord consented to a search of the computer’s hard drive, which included the defendant’s e-mails and documents.* Because the landlord “had control, if not exclusive control, over the computer[,]” her consent to the search was valid, and “the officers were under no obligation to ask whether defendant’s files were password protected.” Id.

Page 42

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

A person may withdraw or revoke consent at any time. In People v Powell, 199 Mich App 492, 500-501 (1993), the Court of Appeals explained revocation of consent as follows: “[W]e hold that a suspect may revoke his consent to search at any time. The revocation of the consent to search, however, does not invalidate the search conducted pursuant to the valid consent of the suspect before that consent was revoked. Any evidence obtained during the consensual portion of that search is admissible. However, once the consent is revoked, the police must stop the search unless continuing the search may be justified under some basis other than the suspect’s consent. Finally, any evidence obtained during the consensual portion of the search may be considered in determining whether a continued search may be justified on some other basis.” A police tactic called “knock and talk” is sometimes used to obtain consent to search. The “knock and talk” tactic is where the police target a residence that they do not have probable cause to search, and then approach it and ask for consent to search. The Michigan Court of Appeals has upheld the constitutionality of this technique in People v Frohriep, 247 Mich App 692, 697-699 (2001), lv den 466 Mich 888 (2002).

G. Inventory Search
The inventory search exception allows inventory searches of arrested persons or impounded vehicles without a warrant or probable cause if they are conducted in accordance with established departmental procedures and not used as a pretext for conducting a criminal investigation. People v Toohey, 438 Mich 265, 272, 276, 285 (1991). The purpose of an inventory search policy is to (1) protect an arrestee’s property, (2) protect the police against claims for lost or stolen property, and (3) to reduce potential physical danger. Id. at 284-286. The legality of an inventory search of a car following a defendant’s arrest depends in part on whether the car was lawfully impounded. See People v Poole, 199 Mich App 261, 265 (1993) (upholding impoundment of car seized pursuant to department policy requiring impoundment after a person’s arrest when no one can take the car). The prosecution must show that any impoundment is both necessary and reasonable, and conducted pursuant to departmental procedures. People v Castle, 126 Mich App 203, 207 (1983); Toohey, supra.

H. Status of the Person Searched
*Michigan law authorizes a police officer to arrest without a warrant any probationer or parolee if the officer has reasonable cause to believe the person has violated a condition of probation or parole. MCL 764.15(1)(h).

A suspicionless search or seizure conducted solely on the basis of an individual’s status as a probationer or parolee does not violate the Fourth Amendment’s protection against unreasonable searches and seizures. Samson v California, 547 US 843, 857 (2006). The Samson case involved a California statute* authorizing law enforcement officers to search a parolee—without a warrant and without suspicion of criminal conduct—solely on the basis of the person’s status as a parolee. The question to be decided by the Samson Court was “[w]hether a condition of [a parolee’s] release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.” Samson, supra at 847 (footnote omitted). The Court concluded that under the totality of the circumstances and in light of the legitimate government interests furthered by monitoring parolee activity, the suspicionless search of a parolee does not impermissibly intrude on the parolee’s already diminished expectation of privacy. Samson, supra. See also United States v Conley, 453 F3d 674 (CA 6, 2006), where the Sixth Circuit ruled that ordering a probationer—even a probationer convicted of a “white collar” crime—to submit a DNA sample did not require individualized suspicion and did not violate the prohibition against unreasonable searches. According to the Court: “In view of [the defendant]’s sharply reduced expectation of privacy, and the minimal intrusion required in taking a blood sample for DNA analysis for identification purposes only, the government’s interest in the proper identification of convicted felons outweighs [the defendant’s] privacy interest. Under a totality of the circumstances analysis, the search is reasonable, and does not violate the Fourth Amendment.” Conley, supra at 680-681.

*“‘Community residential home’ means a location where electronic monitoring of prisoner presence is provided by the [D]epartment [of Corrections] 7 days per week, 24 hours per day . . . .” MCL 791.265a(9)(b).

A parolee living in a community residential home* while “physically connected . . . to a device that monitored his every movement and made him obtain approval before leaving the walls of [the] home,” is treated as a prisoner, not as a parolee. United States v Smith, 526 F3d 306, 309 (CA 6, 2008). Accordingly, the police have as much freedom to enter and search that parolee’s community residential home as they do to enter and search a defendant’s prison cell; just as with an incarcerated offender, a communityresident prisoner has no legitimate expectation of privacy and is subject to unannounced searches, with or without suspicion. Id.

*See Section 2.16 for a discussion of search warrants issued by electronic devices.

Page 45

Section 2.15

3. Determine that a licensed physician, or a licensed nurse or technician operating under the delegation of a licensed physician and qualified to withdraw blood, will collect the sample requested by the officers. MCL 257.625a(6)(c). In People v Callon, 256 Mich App 312, 323 (2003), the Michigan Court of Appeals held that MCL 257.625a(6)(c) does not govern the admissibility of blood test results that are not obtained by consent to chemical testing. The admissibility of results obtained through a search warrant as required by MCL 257.625d(1) is governed by the rules of evidence and any relevant constitutional considerations. 4. Determine that the affidavit establishes reasonable grounds to believe that the person has committed either: OWI, OWVI, zero tolerance, OWI/OWVI causing death, OWI/OWVI causing serious impairment of bodily function, a violation of the foregoing with passenger under 16, negligent homicide, manslaughter with a motor vehicle, or felonious driving. MCL 257.625a(6)(d). 5. If the affidavit is based on information supplied to affiant by a named person, such as another police officer, determine that the affidavit contains affirmative allegations from which the magistrate may conclude that the named person spoke with personal knowledge of the information. MCL 780.653(a). 6. If the affidavit is based on information supplied to affiant by an unnamed person, determine that the affidavit contains affirmative allegations from which the magistrate may conclude: a. That the unnamed person spoke with personal knowledge; and b. That the unnamed person is credible, or that the information is reliable. MCL 780.653(b). 7. Swear affiant: a. Administer oath. MCL 780.651. b. Ask if averments in affidavit are true to best of affiant’s information and belief. Id. c. Ask affiant to sign affidavit. See People v Mitchell, 428 Mich 364, 368 (1987) (search warrant based upon an unsigned affidavit is presumed invalid, but the prosecution may rebut the presumption by showing that the affidavit was made on oath to a magistrate).

Page 46

Monograph 2—Issuance of Search Warrants (2006–April 2009)

Monograph 2—Issuance of Search Warrants (2006–April 2009)

8. Sign and date affidavit and search warrant. See People v Barkley, 225 Mich App 539, 545 (1997) (an unsigned search warrant is presumed invalid, but the prosecution may rebut the presumption by showing that the magistrate or judge made a determination that the search was warranted and did intend to issue the warrant). The acquisition of a search warrant for blood alcohol evidence in drunk driving cases removes the issue of consent, and thus makes the implied consent statute inapplicable. People v Jagotka, 232 Mich App 346, 353 (1998), rev’d on other grounds 461 Mich 274 (1999); Manko v Root, 190 Mich App 702, 704 (1999).

2.16

Submission of Affidavit and Issuance of Search Warrant by Electronic Device
Effective October 17, 2003, 2003 PA 185 expanded the electronic or electromagnetic means by which affidavits and search warrants could be signed and transmitted to include transmission by facsimile and over a computer network. MCL 780.651(2) provides: “An affidavit for a search warrant may be made by any electronic or electromagnetic means of communication, including by facsimile or over a computer network, if both of the following occur: “(a) The judge or district court magistrate orally administers the oath or affirmation to an applicant for a search warrant who submits an affidavit under this subsection. “(b) The affiant signs the affidavit. Proof that the affiant has signed the affidavit may consist of an electronically or electromagnetically transmitted facsimile of the signed affidavit or an electronic signature on an affidavit transmitted over a computer network.” An oath or affirmation orally administered by electronic or electromagnetic means is considered to be administered before the judge or district court magistrate. MCL 780.651(5). In addition to issuing search warrants in person, MCL 780.651(3) authorizes a judge or district court magistrate to issue a written search warrant by any electronic or electromagnetic means including transmission by facsimile or over a computer network. Whenever search warrants are electronically or electromagnetically issued, the peace officer or department in receipt of the warrant must receive proof

that the issuing judge or district court magistrate signed the warrant before its execution. MCL 780.651(4). An electronically or electromagnetically transmitted facsimile of the signed warrant or an electronic signature on a warrant transmitted over a computer network may serve as proof of the judge’s or magistrate’s signature. Id. If electronic or electromagnetic means are used to submit an affidavit for a search warrant or to issue a search warrant, the transmitted copies of the affidavit or search warrant are duplicate originals and need not contain an impression made by an impression seal. MCL 780.651(6). The validity of a search warrant issued by telephone and facsimile transmission has been upheld by the Michigan Court of Appeals. In People v Snyder, 181 Mich App 768, 769-770 (1989), the arresting officer sought a search warrant authorizing the withdrawal of a blood sample from a defendant arrested for drunk driving. The officer telephoned the judge at home, and then faxed a copy of the unsigned warrant documents to the judge’s home. The officer raised his right hand and telephonically swore to the affidavit. The officer then signed and faxed the affidavit to the judge, who in turn signed the warrant and faxed it to the officer. The Court of Appeals found the telephone/ fax procedure valid because there was no statutory or constitutional impediment to the manner in which the warrant was obtained. Id. at 774. The Court also found that the telephonic communication link created enough of a presence to satisfy the oath requirement of the search warrant statute. Id. at 773-774.

2.17

Public Access to Search Warrant Affidavits
A search warrant affidavit contained in any court file or court retention system is a nonpublic record, except as provided in MCL 780.651(8). MCL 780.651(7). Under MCL 780.651(8), a search warrant affidavit becomes a public record on the 56th day following the issuance of the search warrant, unless a police officer or prosecutor, before that date, “obtains a suppression order from a magistrate upon a showing under oath that suppression of the affidavit is necessary to protect an ongoing investigation or the privacy or safety of a victim or witness.” The suppression order may be obtained ex parte in the same manner that the search warrant was issued. Id. Initial suppression orders expire on the 56th day after the order was issued; subsequent suppression orders, which may be obtained in the same manner as initial suppression orders, expire on the date specified in the order. Id. The provisions in MCL 780.651(7)-(8) do not affect a person’s right to obtain a copy of a search warrant affidavit from the prosecuting attorney or law enforcement agency under Michigan’s Freedom of Information Act, MCL 15.231-15.246. MCL 780.651(8).

1. Upon receipt of a telephone call requesting that a warrant be issued, ask the police officer to read the affidavit and search warrant. 2. Determine that the person, place, or thing to be searched is described with particularity. 3. Determine that the property to be seized is described with particularity. 4. Determine that the property is a proper subject for seizure. See Section 2.6 for a list of property that may be the subject of a search warrant. 5. Determine that the affidavit establishes probable cause to believe that the articles to be seized may be found in the place to be searched. 6. If the affidavit is based on information supplied to the affiant by a named person, determine that the affidavit contains affirmative allegations from which the magistrate may conclude that the named person spoke with personal knowledge of the information. 7. If the affidavit is based on information supplied to the affiant by an unnamed person, determine that the affidavit contains affirmative allegations from which the magistrate may conclude: that the unnamed person spoke with personal knowledge; AND that the unnamed person is credible OR that the information is reliable. 8. Swear affiant: orally administer oath. ask if averments in affidavit are true to the best of affiant’s information and belief. ask affiant to sign affidavit. 9. Sign and date the affidavit and search warrant and FAX them to affiant. 10. Direct the police officer to leave a completed copy of the return to the search warrant at the place to be searched. 11. Ensure that a filled-out return to the search warrant is promptly filed with the court after the search warrant is executed.